California Employment Law Letter
attorneys’ fees will be awarded to the prevailing employer. In this case, the appellate court upheld the award
of fees to the prevailing employer, but the employee may
appeal that decision.
The author can be reached at Fisher & Phillips LLP in Los
Angeles, mflores@laborlawyers.com. D
EMPLOYEE MISCONDUCT
empmis, disc, dh, hcra, ada, term, feha, pp, wv
Untouchable? Disciplining
employees for disabilitycaused misconduct
by Nikki Hall and Eugene Park
Renne Sloan Holtzman Sakai LLP
HR professionals regularly implement employee discipline
and are adept at navigating the waters of reasonable accommodations for disabled employees. Mingling those two issues,
however, can sometimes pull an employer in opposite directions when it’s responding to, for example, a chronically tardy
employee suffering debilitating side effects from medication or
an employee whose rude or even threatening behavior is due to
a psychiatric disability. Adding to this conundrum is the differing and evolving judicial and administrative guidance.
An inconsistent legal landscape
Throughout the early 2000s, the U.S. 9th Circuit
Court of Appeal, which has jurisdiction over California,
ruled that disciplinary action targeting disability-caused
conduct could be construed as being directed toward
the disability itself and therefore implicate disability discrimination laws. In three cases, the federal court overturned the lower court and either allowed the trial to
proceed or ordered a new trial on Americans with Disabilities Act (ADA) disability discrimination claims. The
cases were filed by:
(1) A medical transcriptionist terminated for tardiness
and absenteeism due to her obsessive-compulsive
disorder (Humphrey v. Memorial Hospitals Association);
(2) A heavy-equipment operator terminated for suffering an epileptic seizure while driving a county vehicle (Dark v. Curry County); and
(3) A clerk with bipolar disorder terminated for outbursts that frightened coworkers (Gambini v. Total
Renal Care, Inc.).
In each case, the court pronounced the rule that
“conduct resulting from a disability is considered to be
part of the disability” and therefore can’t be considered
as a separate basis for discipline.
In Wills v. Superior Court, the California Court of Appeal reached a different result in 2011. The court upheld
March 24, 2014
the termination of a court clerk who yelled and swore
at coworkers, told them she would add them to her Kill
Bill hit list, and sent numerous threatening e-mails. The
employee challenged her termination under California’s
Fair Employment and Housing Act (FEHA), arguing
that her misconduct occurred during a severe manic
episode caused by her bipolar disorder.
The court questioned whether the 9th Circuit’s decisions blurring the lines between “conduct” and “disability” were as unassailable as they first appeared, and it
noted that all three decisions relied on an overly simplistic—and in some cases nonexistent—analysis. Therefore, the court ruled that when a workplace violence policy is violated, the employer may distinguish between
disability-caused misconduct and the disability itself.
The court didn’t answer the question of whether the
same rule would apply for misconduct not in violation
of a workplace violence policy.
Also in 2011, the Equal Employment Opportunity
Commission (EEOC) weighed in with its own interpretation of the ADA and issued guidance stating that an
employee may be disciplined for disability-caused misconduct if the employer was previously unaware of the
disability. The EEOC also affirmed that under the ADA,
employers may discipline employees they know are disabled for violations of workplace standards that are jobrelated, are necessary for the business, and are applied
equally to all employees.
Bottom line
While the courts have yet to offer comprehensive
guidance, California employers can be reasonably confident in observing the following principles:
• Unless you know or should know about an employee’s disability, you don’t have to treat the employee any differently with respect to discipline. You
should, however, document when you first learned
of the disability and, in some instances, request
an explanation from the employee if you reasonably suspect performance issues are caused by a
disability.
• You should engage in an interactive process with
all employees, including disciplined employees,
to identify reasonable accommodations that could
prevent future misconduct. This could include, for
example, offering telecommuting or modified work
arrangements available to other employees.
• If you later become aware that misconduct was
caused by a disability, you don’t have to retract an
otherwise proper disciplinary action. You still may
move forward with discipline if the misconduct violates a job-related rule that applies to all employees,
such as requirements that employees deal appropriately with customers.
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California Employment Law Letter
AGENCY ACTION
EEOC sees record year for monetary recovery. The Equal Employment Opportunity Commission (EEOC) has released data for the 2013 fiscal
year showing that the agency obtained the highest
monetary recovery in agency history—$372.1 million. During the fiscal year, which ran from October
1, 2012, to September 30, 2013, the agency handled 93,727 charges of workplace discrimination,
a 5.7% decrease from the 99,412 charges received
in fiscal year 2012. As in previous years, retaliation
under all statutes was the most frequently cited
basis for discrimination charges, increasing in both
actual numbers (38,539) and as a percentage of all
charges (41.1%) from the previous year. This was
followed by race discrimination (33,068/35.3%);
sex discrimination, including sexual harassment
and pregnancy discrimination (27,687/29.5%); and
discrimination based on disability (25,957/27.7%).
OSHA focusing on cell tower safety. The
Occupational Safety and Health Administration
(OSHA) has announced it is collaborating with the
National Association of Tower Erectors and other
industry stakeholders to ensure that communication tower employers understand their responsibility to protect workers. An OSHA statement said
that the agency is concerned about an increase
in injuries and fatalities at communication tower
worksites. In 2013, OSHA said there were 13 fatalities, more than the previous two years combined.
Also, there were four worker deaths in the first
five weeks of 2014. The agency has sent a letter
to tower employers urging compliance and strict
adherence to safety standards. It also has created
a webpage targeting the issues surrounding communication tower work. Of the 13 fatalities in 2013,
the majority were a result of falls.
JPMorgan Chase pays $1.45 million to resolve sex discrimination suit. The EEOC has announced that financial giant JPMorgan Chase will
pay $1.45 million and revamp its procedures to
settle a sex-based harassment lawsuit. The EEOC
charged in its suit that JPMorgan Chase maintained
a sexually hostile work environment toward female
mortgage bankers assigned to its Polaris Park facility outside Columbus, Ohio. The EEOC alleged
that female mortgage bankers not participating in
sexually charged behavior and comments became
ostracized and suffered economic consequences
by being deprived of lucrative sales calls, training
opportunities, and other benefits of employment.
In addition to the monetary relief, the employer is
to develop a call data retention system so that assignments of sales calls can be accessed and analyzed to ensure they are being equitably distributed
among mortgage bankers. D
4
•
In any event, you may discipline employees for violations of
ADA-compliant rules against alcohol and substance abuse
and other major misconduct.
The authors can be reached at Renne Sloan Holtzman Sakai
LLP in San Francisco, nhall@publiclawgroup.com and epark@
publiclawgroup.com. D
EMPLOYER NEGLIGENCE
negligence, el, temps, empmis, soe, wv
Employer not liable for employee’s
poison gift to coworker
by Michael Futterman and Jaime Touchstone
Futterman Dupree Dodd Croley Maier LLP
A staffing company hired an employee to work at Kaiser. The
employee poisoned her Kaiser coworker, who then sued the staffing
company. The California Court of Appeal held that the staffing company wasn’t vicariously liable because the employee acted outside the
course and scope of her employment when she maliciously poisoned
her coworker.
A poisonous workplace relationship
AMN Healthcare, Inc., d/b/a Nursefinders, is a medical
staffing company. Nursefinders assigned Theresa Drummond
to work as a medical assistant at a Kaiser facility. Drummond
had a disagreement with her Kaiser coworker, Sara Montague,
about the stocking of rooms and the placement of lab slips.
Drummond raised her voice on one occasion, but Montague
didn’t consider the incident serious enough to report. Shortly
afterward, Drummond summoned her inner mixologist, took
carbolic acid from a Kaiser examination room, and poured it
into Montague’s water bottle. Montague survived the poisoning.
Montague and her husband sued Nursefinders, alleging
that Drummond was engaged in her employment when she
poisoned Montague, giving rise to liability under a theory of
respondeat superior (“let the master answer”). Montague also
claimed Nursefinders negligently hired, retained, supervised,
and trained Drummond.
The trial court dismissed the case without a trial on two
grounds. First, it held that Nursefinders, as a staffing agency,
was absolved of vicarious liability because it had no control over
Drummond, who was considered a “special employee” of Kaiser while working there. Second, the trial court held that Drummond’s creation of a carbolic cocktail fell outside the scope of
her employment. Montague appealed, and the court of appeal
affirmed the decision.
Vicarious liability for employee’s
wrongful conduct
The doctrine of respondeat superior permits an employer
to be held vicariously liable for wrongful acts committed by
an employee within the “scope of employment.” The public
March 24, 2014